Court watching is humbling, especially when you're (half) wrong. Like almost every commentator, I expected a grant in at least one DOMA case. I thought Windsor was the likeliest choice if the Court took only one: it offers an avenue for addressing scrutiny levels and would not require Justice Kagan to recuse herself. As Towleroad readers know, though, I did not expect the Court to grant the petition in the Prop 8 case, especially because of the narrowness of the Ninth Circuit's decision.

But, being at the Supreme Court has its advantages. It means you can craft the question presented -- the specific legal question the parties have to answer at oral argument and the Court wants to answer in its decision -- pretty much any way you want. The way the Court specified the questions in both cases speaks volumes to the great potential to make remarkable strides toward equal honor and dignity under the law.

One thing is clear: The reason the Court took so long to grant these hearings is the complexity of the orders and myriad options open to the Court. Evidently, there was also a lot of strategy involved. That is, even though the Court gave itself great space to decide every substantive issues, each order includes a jurisdictional question that would allow the Court to avoid the substance if it really wanted to.

The American Foundation for Equal Rights (AFER) is leading the charge against California's ban on same-sex marriage and achieved extraordinary success. That success reached its zenith when Judge Vaughn Walker issued a sweeping decision declaring that by discriminating against gay couples, Prop 8 violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. The Ninth Circuit affirmed the decision, but took a step back from that broad holding, finding only that Prop 8 was unconstitutional because it took away already existing rights.

The Supreme Court is interested in the broader holding. Its order takes as the question presented whether, under the Fourteenth Amendment, California can define marriage as between one man and one woman. It did not limit its consideration of the case to the Ninth Circuit's taking away theory.

Plus, the Court will return to the "standing" question. If you recall, the Ninth Circuit Prop 8 decision took extra time because that court had to determine if the proponents of Prop 8, ProtectMarriage, could stand in the shoes of the state to defend the law when the state government refused to. The Court would like to determine that for themselves, and because jurisdictional issues are determined de novo -- "from the beginning" -- the Supreme Court is more than free to come to a different conclusion than the Ninth Circuit.

Windsor v. United States, challenging the Defense of Marriage Act

The ACLU brought this challenge on behalf of Edie Windsor, who had to pay an exorbitant tax bill upon the death of her partner where every heterosexual widow would not. If you recall, this is the case where a relatively conservative panel of the Second Circuit held that heightened scrutiny is the appropriate level of scrutiny for DOMA and any state action that discriminates on the basis of sexual orientation.

This is the only DOMA case for which the Court granted a hearing. It said nothing about Gill, which was the First Circuit case decided on "rational basis with bite" and included a Tenth Amendment question. But, Gill was also the case in which Justice Kagan would have had to recuse herself, so that was the least likely to be granted.

The Court chose the Government's question presented -- Whether DOMA Section 3 (one-man, one-woman definition of marriage for federal purposes) violates the Fifth Amendment -- but also included two other questions: Does the fact that the Government agreed with the Second Circuit's decision deprive the Court of jurisdiction to hear the case? And, do House Republicans, who took up defense of DOMA when President Obama refused, have standing?

We all understand the main question. The second question is a bit arcane. Normally, a winner cannot appeal a lower court ruling. The Obama Administration argued at the Second Circuit that DOMA is unconstitutional, so a decision declaring DOMA unconstitutional agrees with the Government's position. That decision certainly made the ACLU and Edie Windsor winners, but whether it made the Government a winner -- and thus, incapable of appealing it -- is less clear. The Government argues that the Second Circuit's decision was a decision against a duly enacted Act of Congress that the executive was still obligated to enforce, notably against its will. Therefore, the decision was, theoretically, still against the Government.

By these questions, the Court gave itself space to answer both the underlying merits of the DOMA challenge and the scrutiny question. After all, it may not be possible to decide if DOMA Section 3 is unconstitutional without first deciding how to answer the question, i.e., heightened scrutiny versus rational basis.

Analysis

Without being a fly on the wall in conference, the text of the orders and the decision to grant in certain cases but not others speak volumes about what happened, why it took so long, and what this could all mean down the road.

Each order includes an "opt-out." I mean that metaphorically, of course. The orders on both Hollingsworth and Windsor include jurisdictional questions that could decide the entire matter outright without letting the Court get to the substance of either case. So, if some of the justices feel their position won't get 5 votes, they may be more inclined to live to fight another day by making non-precedential decisions on jurisdiction now. This speaks to one of the main reasons why it might have taken so long to come to these decisions: strategy. The ideological wings of the divided Court may have been looking for ways to have a fall back position if they could not get a swing vote on their side, and sometimes, jurisdictional questions that prevent wide application of a decision beyond the one at hand offer that kind of safe default position.

What about scrutiny? The Windsor order did not specifically mention the appropriate level of scrutiny, but by taking the Windsor case, the Court may have recognized that the hazy scrutiny standard it has left in place since Lawrence v. Texas is no longer tenable. Windsor was the only DOMA case that forced the Government to stake out a scrutiny position; the Second Circuit was unique in that it had no historical precedent on the appropriate level of scrutiny for anti-gay laws. And, the Windsor decision put the level of scrutiny front and center when the court held that heightened scrutiny was necessary. The Court could always continue to muddle through or decide that DOMA is unconstitutional under any level of scrutiny and leave the law an unclear patchwork of scrutinies that varies from circuit to circuit, but the grant and its wording gives the Court the space to make a scrutiny decision.

Baker v. Nelson is nowhere to be found. Baker is a 1971 case where the Supreme Court denied a hearing on a gay marriage case from Minnesota "for want of a federal question." That is, back then, the Court said that Minnesota's decision to deny licenses to gay couples was not a matter for the federal constitution. To this day, almost every brief supporting a marriage ban refers to Baker, arguing that it forecloses any Supreme Court review. That argument ignores 40 years of gay rights law, in general, and Romer v. Evans and Lawrence v. Texas, in particular, which changed the relationship between gay persons and federal law. The Court may indeed address, and likely explain away, Baker, but the wording of its grant suggests that it is not at the forefront of the Court's consideration.

Is this a good or bad result? Granting Windsor gives the Court a unique opportunity to come together to declare DOMA unconstitutional, though it is not clear that the Court is ready to mandate heightened scrutiny. But, there is no doubt that the grant in Hollingsworth took me by surprise. Its framing the case in the broadest way possible offers a chance for a monumental victory or a great loss because the breadth of the case could have ramifications outside California. This is what Ted Olson, David Boies, and the AFER team wanted all along and the country is so much closer to accepting the freedom to marry in great part because of AFER's skillful engagement with the American public on marriage freedom.

What happens next? The Court has set the stage for a March argument and a decision on the last day of the Court's current term in late June 2013. For now, the Ninth Circuit's stay that prevents the implementation of Judge Walker's original order remains in place. Gays cannot marry in California just yet. But, they are oh so much closer to a resolution.

In the coming days, I will parse out more details and discuss some of these and other implications of this development. Please ask questions in the comments section and I will do my best to respond as soon as possible.

Congratulations to the AFER team and its plaintiffs, Kris Perry and Sandy Stier, Jeff Zarrillo and Paul Katami, and to the ACLU LGBT Project team, James Esseks and his attorneys, and Edie Windsor. The sacrifices they are making for all of us should never go unnoticed.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.

Comments

"The court is looking to strike down DOMA. The California case in particular has been well researched and is ready. It created a class of citizens able to marry when others of the same class are not allowed to. I think the court is looking to the current times, elections and outdated law. I don't even think this is going to be hard one for them and I think it will get more than a simple majority to make marriage- for any individual wanting to enter into this contract with another individual- a fundamental right by all. "

Posted by: BRAINS | Dec 7, 2012 6:12:53 PM

They took the cases so the most conservative court in history could decide marriage equality before Obama has a chance to shift the balance of the court. plain and simple

Posted by: badlydrawnbear | Dec 7, 2012 6:15:12 PM

CEEBLOO, what a good idea about it being illegal to pass any unconstitutional laws! Oh, who exactly would determine when a bill or ballot initiative is unconstitutional?

Posted by: Zlick | Dec 7, 2012 6:21:59 PM

As for today's cert granting, I find no logic in any strategy to take the Prop 8 case and rule against marriage equality. What is gained by that? 9 states would still have equal marriage, and even California would be able to get it back via the ballot. Where would you find the 4th vote to take the case merely in order to affirm Prop 8 - with no result differing from simply not taking the case?

And if taking the case to scuttle equal marriage makes no sense, that leaves only the strategy of taking the case with the possibility quite alive to affirm equal marriage nationwide.

Posted by: Zlick | Dec 7, 2012 6:28:17 PM

@Zlick, don't forget the question of standing. The Prop 8 case had a few wrinkles in that area that the court may want to clear up.

Posted by: JJ | Dec 7, 2012 6:38:57 PM

@ RK,

NO. That assumption is not based on anything. Conservatives got what they REALLY wanted from this court: Citizens United, of which Ted Olson was the lead attorney who led them to victory.

@ Mark,
"I'm going to stick my neck out here and say I think they are really going to rule that there is no Article III standing at the Federal Level regardless of what the State Supreme Court said because for Federal Purposes the Court still needs to satisfy that a party to the suit as to be subjected to the final order (either to do something or refrain from doing something)."
----
EXACTLY.

@Rob,
"Since the Supreme Court decided not to take the previous DOMA cases from other circuit courts. Do those decisions stand?"
----
Not sure what cases you are referring to but refusing to hear a case is NOT a decision either way, hence they are NOT court PRECEDENT, or case law.

The strategy that makes sense for the GOP for the next election cycle is to let the Supremes find a way to grant same-sex marriage by a 5-4 vote, with Kennedy as the swing vote. Scalia can stand up and voice his objection and Justice Thomas' wife can do all sorts of public hand-wringing-- and the GOP will rev up and energize its base for the next few elections about how they need to "take back the court." *g

If on the other hand, the Supremes do anything major to damage same-sex marriage nationally, they leave the GOP base satisfied, energize progressives, and play into statistics that irrefutably point to the anti-gay crap becoming increasingly dangerous for long-term GOP gains, particularly nationally. After getting their behinds handed to them in the last election, showcasing one of the most public attacks in recent memory on Civil Rights is not where the GOP really wants to be strategically, particularly regarding the next Presidential election.

It's kind of like the old idea that if the conservative Supremes ever really did strike down Roe v. Wade, they'd end up wrecking the GOP, maybe forever. Which is a good reason why, while there's been a lot of huffing and puffing on the issue, in all these years it's never come to pass. Majorly damaging same-sex marriage hasn't quite yet reached that level of being a self-inflicted nuclear attack on oneself by the GOP, but it's getting there. There are also an awful lot of rich folk with GLBT kids and relatives. And a number of 'em are Republican and not so on board with GOProud's "bend-over-and-I'll-take-it" philosophy.

So my totally non-legalistic prediction is they use Kennedy as the scapegoat for the tea-baggers and do what's actually much smarter in terms of GOP electoral strategy, energizing their base and leaving progressives being the ones more content and less likely to vote/campaign/be constantly public with outrage.

Posted by: bobbyjoe | Dec 7, 2012 7:03:11 PM

@ Middle,
The fact that SCOTUS took the Prop 8 appeal is not good. Does anyone realistically believe that it is a near certainty that 5 Justices are going to say that there is a fundamental right for same-sex partners to get married? It might happen, but wow -- 50-50 at best, totally dependent on what Roberts or Kennedy will do (and we are all assuming that the other 4 'liberals' will find Prop 8 unconstitutional). There will be plenty of time for everyone to offer his/her more detailed analysis, but it just doesn't seem like a good development."
----
Everybody thought that Obamacare was doomed, yet look at THAT surprise.

As much as there will be plenty of time for everybody to write analysis there is also plenty of time to do other things to get gay marriage legalized in other states. To only focus on this one ruling (prop 8) is totally missing the point. The Judicial system is only one avenue (and one instance) of many we can take advantage of. I say put all the cards on the table and see which of any can produce the best results. For now, it is important to get the voters on our side. I would like to see 55% or more in the polls so that we can start even more mobilization where is needed.

@chris,
"If Prop 8 is upheld, is there a scenario where marriage laws in states where gay marriage is legal, (like NY), are impacted?"
----
That is a resounding NO. BUT the more states legalize gay marriage the better for the justices to rule in our favor.

@chris,
"If Prop 8 is upheld, is there a scenario where marriage laws in states where gay marriage is legal, (like NY), are impacted?"
----
That is a resounding NO. BUT the more states legalize gay marriage the better for the justices to rule in our favor.

We should have put Prop 8 on the ballot. With out a doubt. I now believe that more than ever before.

* First time we had an endorsment from a sitting president for gay marriage. And one who in CA has over 70% approval rating.

* Much younger voters this time around.

* Mormon campaign has eased up on various gay marriage combating.

* We would have been FAR more prepared with our campaign.

* 4 years many people have evolved.

Posted by: Duration&Convexity | Dec 7, 2012 7:20:32 PM

@BobbyJoe

You have some good points. Liberals should try to remain energized no matter what. But I think that Obama and Pelosi will indeed capitulate to the fascists of the right wing with entitlement cuts. If massive cuts do end up happening I think that is enough reason to mobilize and even strike.

If we lose the Prop 8 case I think you would mobilize some liberal base activists but I think other people who are not part of that base or who have no political persuasion or not politically active may also be activated for this civil rights cause.

I agree 100%. Also, let's not forget we got 48% of votes for marriage equality in 2008 with one of the worst marriage equality campaigns ever. We still got nearly half the states votes. Foyr years later, In 2012, I'd bet my bottom dollar California voters would have approved marriage equality; even by a 52%-48% switch around, the tides have turned in this state. Shame groups like Equality California did not have more faith in us.

Ari, my question concerns the part of the order regarding the Windsor case that raised the question of standing for BLAG. How significant is this? I remember in one case, Golinski, I believe, the judge raised in passing the question of whether BLAG had standing. If I remember correction, he said something to the effect that for a law to take effect, both Houses of Congress had to pass it, and since the Senate did not join the House of Representatives in wanting to defend DOMA, BLAG therefore may not have standing. Is this what the order may be getting at? Thank you in advance.

Posted by: Jay | Dec 7, 2012 7:27:51 PM

When you step back and evaluate all this, you realize how unfortunate it truly is for LGBT to have to beg, and go through so much just to attain equal access to an institution that is a foundation for many. That equality is granted to so many other demographics, yet in soon to be 2013, millions of gay Americans have to have their lives in limbo because of who they naturally love and are committed to. It's a real stain, and complete shame.

I personally believe ALL LGBT should be engaged in our quest for equality. There's millions and millions and millions of us out there. FAR more so than the general public realizes. If all those LGBT who live in shame were to evolve and attain full self acceptance and realize their self worth and dignity is WORTH fighting for. That they pay into a tax system and government that treats them as second class citizens. And that they are of no less value than their heterosexual counter part....Then and only then can we truly be strong in numbers.

If all LGBT helped equality for our community in varrying forms (be it ENDA, or youth bullying, or DOMA, or just simply ...coming out to your loved ones) this conversation would be one where we would constantly be celebrating LGBT related triumphs.

Yellow Mellow:
one of my favorite posts I've read on here. very very true. the impact of all of us LGBT joining forces and holding hands and showing strength in numbers would silence our detractors in realizing we're here. We're Americans. We're contributing to society. We're neighbors, coworkers, and innovators. That closet has been the most destructive and detrimental aspect of our plight.

Posted by: LipstickDiva | Dec 7, 2012 8:00:57 PM

As many has already pointed out, ballot initiative may be a good option. It seems that California has missed the boat in the last election. Marriage equality should have been approved in a referendum like Maine. I don't understand why pro-gay organizations in California haven't done it.
They should have a multi-pronged approach including both court actions and ballots.

Posted by: simon | Dec 7, 2012 8:33:07 PM

I think California GLBT organizations COULD have at least started the building blocks of a public campaign to promote marriage equality in CA starting after the 2008 ballot results. Instead, I regret saying our leaders here in CA literally put all their eggs in the court basket. If you talked with them, like I have, they were so incredibly confident we'd win in the courts that none predicted SCOTUS would consider taking the review. What would have been far more effective and wise on their part is to fight this in court, but ALSO mobilize a "door to door" campaign in California ....just in case.

That would have been four years of solid ground-work in California for our side, just in case we wanted to put this back on the ballot. But living in this state and being closely affiliated to some of these organizations; they not only did not do ANY out reach for gay marriage in our state, but actually thought it was a waste of time. Truly, very very little has been done in California in terms of advancing public opinion for marriage equality on behalf of gay rights organizations. The public here has been left to evolve on their own, while gay rights organizations host cocktail parties and fight the entire battle in court.

It's a real mess out here, and no surprise at all why so many other states are doing a far more skilled (and successful) job at getting results.

@ Amir
I co sign, and also live here, and am also greatly disappointed in our leaders who could have used the past four years as a spring board to advance the conversation. Instead, they've been mute.

Posted by: Greg Cali | Dec 7, 2012 8:50:06 PM

@Simon--It's because Equality California is completely inept. They bungled the No on 8 campaign badly and snatched defeat from the jaws of victory. (I volunteered for them back in 2008). Then they never really accepted responsibility for their failure. Then they went back to collecting funds so that they could get a repeal of Prop 8 on the ballot in 2010. Then they decided they should wait until 2012 to put it on the ballot and collected more donations for that purpose. Then, they decided they weren't going to put it on the ballot after all. They thought it wouldn't be a sure thing so why bother trying. Never refunded the money that we gave towards getting a repeal on the ballot and never apologized for fund raising under false pretenses.
And now the victories in 4 states show just how wrong they were once again. We would have won here in California, too. As long as we didn't leave the organizing and advertising to EQCA and hired the kind of people they had in Maine, Washington, Maryland, and Minnesota.
It's shameful and frustrating as hell. Now we wait... and if the SCOTUS rules to uphold Prop 8 we have no backup plan to overturn it.
I would like to hear what they are doing with our donations and if they have a plan B.